The Obama regime’s objection to military detention is not rooted in concern for the constitutional rights of American citizens. The regime objects to military detention because the implication of military detention is that detainees are prisoners of war. As Senate Armed Services Committee Chairman Carl Levin put it: Should somebody determined “to be a member of an enemy force who has come to this nation or is in this nation to attack us as a member of a foreign enemy, should that person be treated according to the laws of war? The answer is yes.”

Detainees treated according to the laws of war have the protections of the Geneva Conventions. They cannot be tortured. The Obama regime opposes military detention, because detainees would have some rights. These rights would interfere with the regime’s ability to send detainees to CIA torture prisons overseas. [Yes, Obama is still apparently allowing “extraordinary renditions” to torture people abroad.] This is what the Obama regime means when it says that the requirement of military detention denies the regime “flexibility.”

The Bush/Obama regimes have evaded the Geneva Conventions by declaring that detainees are not POWs, but “enemy combatants,” “terrorists,” or some other designation that removes all accountability from the US government for their treatment.

By requiring military detention of the captured, Congress is undoing all the maneuvering that two regimes have accomplished in removing POW status from detainees.

The November 17 letter to the Senate from the Executive Office of the President says that the Obama regime does not want the authority it has under the Authorization for Use of Military Force (AUMF), Public Law 107-40, to be codified. Codification is risky, the regime says. “After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country.”

In other words, the regime is saying that under AUMF the executive branch has total discretion as to who it detains and how it treats detainees. Moreover, as the executive branch has total discretion, no one can find out what the executive branch is doing, who detainees are, or what is being done to them. Codification brings accountability, and the executive branch does not want accountability.

Those who see hope in Obama’s threatened veto have jumped to conclusions if they think the veto is based on constitutional scruples.

Police State Started Years Ago

Even if Obama’s threatened veto was for more noble purposes, the fact is that it would not change anything, because the U.S. government claimed the power to indefinitely detain and assassinate American citizens years ago.

For example, law school professor and National Lawyers Guild president Marjorie Cohn pointed out in 2006:

The Military Commissions Act of 2006 governing the treatment of detainees is the culmination of relentless fear-mongering by the Bush administration since the September 11 terrorist attacks.

Because the bill was adopted with lightning speed, barely anyone noticed that it empowers Bush to declare not just aliens, but also U.S. citizens, “unlawful enemy combatants.”

***

Anyone who donates money to a charity that turns up on Bush’s list of “terrorist” organizations, or who speaks out against the government’s policies could bedeclared an “unlawful enemy combatant” and imprisoned indefinitely. That includes American citizens.

Glenn Greenwald and Fire Dog Lake’s Emptywheel have also documented that the White House has believed for many years that it possessed the power to indefinitely detain Americans. See this, this, this, and this.

In 2005, Chris Floyd pointed out that the ability of the government to assassinate U.S. citizens startedthe very week of 9/11:

On September 17, 2001, George W. Bush signed an executive order authorizing the use of “lethal measures” against anyone in the world whom he or his minions designatedan “enemy combatant.” This order remains in force today. No judicial evidence, no hearing, no charges are required for these killings; no law, no border, no oversight restrains them. Bush has also given agents in the field carte blanche to designate “enemies” on their own initiative and kill them as they see fit.

The existence of this universal death squad – and the total obliteration of human liberty it represents – has not provoked so much as a crumb, an atom, a quantum particle of controversy in the American Establishment, although it’s no secret. The executive order was first bruited in the Washington Post in October 2001 …. The New York Times added further details in December 2002. That same month, Bush officials made clear that the dread edict also applied to American citizens, as the Associated Press reported.

The first officially confirmed use of this power was the killing of an American citizen in Yemen by a CIA drone missile on November 3, 2002. A similar strike occurred in Pakistan this month, when a CIA missile destroyed a house and purportedly killed Abu Hamza Rabia, a suspected al Qaeda figure. But the only bodies found at the site were those of two children, the houseowner’s son and nephew, Reuters reports. The grieving father denied any connection to terrorism. An earlier CIA strike on another house missed Rabia but killed his wife and children, Pakistani officials reported.

But most of the assassinations are carried out in secret, quietly, professionally, like a contract killing for the mob. As a Pentagon document unearthed by the New Yorker in December 2002 put it, the death squads must be “small and agile,” and “able to operate clandestinely, using a full range of official and non-official cover arrangements to…enter countries surreptitiously.”

The dangers of this policy are obvious, as a UN report on “extrajudicial killings” noted in December 2004: ” Empowering governments to identify and kill ‘known terrorists’ places no verifiable obligation upon them to demonstrate in any way that those against whom lethal force is used are indeed terrorists… While it is portrayed as a limited ‘exception’ to international norms, it actually creates the potential for an endless expansion of the relevant category to include any enemies of the State, social misfits, political opponents, or others.”

It’s hard to believe that any genuine democracy would accept a claim by its leader that he could have anyone killed simply by labeling them an “enemy.” It’s hard to believe that any adult with even the slightest knowledge of history or human nature could countenance such unlimited, arbitrary power, knowing the evil it is bound to produce. Yet this is what the great and good in America have done. Like the boyars of old, they not only countenance but celebrate their enslavement to the ruler.

This was vividly demonstrated in … Bush’s State of the Union address in January 2003, delivered to Congress and televised nationwide during the final frenzy of war-drum beating before the assault on Iraq. Trumpeting his successes in the Terror War, Bush claimed that “more than 3,000 suspected terrorists” had been arrested worldwide – “and many others have met a different fate.” His face then took on the characteristic leer, the strange, sickly half-smile it acquires whenever he speaks of killing people: “Let’s put it this way. They are no longer a problem.”

In other words, the suspects – and even Bush acknowledged they were only suspects – had been murdered. Lynched. Killed by agents operating unsupervised in that shadow world where intelligence, terrorism, politics, finance and organized crime meld together in one amorphous, impenetrable mass. Killed on the word of a dubious informer, perhaps: a tortured captive willing to say anything to end his torment, a business rival, a personal foe, a bureaucrat looking to impress his superiors, a paid snitch in need of cash, a zealous crank pursuing ethnic, tribal or religious hatreds – or any other purveyor of the garbage data that is coin of the realm in the shadow world.

Bush proudly held up this hideous system as an example of what he called “the meaning of American justice.” And the assembled legislators…applauded. Oh, how they applauded!